Shufflebotham v Police
[2015] NZHC 3114
•8 December 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-000099 [2015] NZHC 3114
BETWEEN LAWRENCE DAVID
SHUFFLEBOTHAM Appellant
AND
NEW ZEALAND POLICE Respondent
CRI-2015-409-000100
BETWEEN LAWRENCE DAVID SHUFFLEBOTHAM Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 1 December 2015 Appearances:
A G James for Appellant
K J Basire for RespondentJudgment:
8 December 2015
JUDGMENT OF GENDALL J
Background
[1] Lawrence David Shufflebotham (Mr Shufflebotham) was sentenced by Judge Garland in the District Court to three years’ imprisonment in relation to seven charges:1
(a) receiving a car door worth less than $500;2
1 New Zealand Police v Shufflebotham [2015] NZDC 19540.
2 Crimes Act 1961, ss 246 and 247.
SHUFFLEBOTHAM v NEW ZEALAND POLICE [2015] NZHC 3114 [8 December 2015]
(b) unlawfully taking a motor vehicle;3
(c) driving whilst disqualified;4
(d) dangerous driving;5
(e) unlawful possession of ammunition;6
(f) possession of methamphetamine;7 and
(g) failing to stop for red and blue flashing lights.8
[2] Mr Shufflebotham now appeals against the sentence imposed. The appeal is advanced on the following grounds:
1.The end sentence of three years was manifestly excessive, and the totality principle was applicable.
2.The uplift of 12 months for previous convictions was too high, in conjunction with the three months uplift for offending while on release conditions. The total uplift of 15 months was disproportionate to the overall sentence.
3.Mr Shufflebotham should have received a full discount of 25 per cent for his early guilty pleas, rather than the ten months awarded.
[3] The Crown opposes the appeal. Its essential thesis is that the District Court
Judge has neither erred in law nor imposed a manifestly excessive end sentence.
Facts
[4] Mr Shufflebotham pleaded guilty to all of the charges. I adopt the factual account of the offending given by Judge Garland:
3 Section 226(1)(a).
4 Land Transport Act 1998, ss 32(1)(a) and 32(3).
5 Section 35(1)(b).
6 Arms Act 1983, s 45(1).
7 Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).
8 Land Transport Act 1998, ss 52(1)(c), 52(3) and 52(5).
[3] The facts relating to your offending are as follows. Late in April of this year the victim had his Toyota motor vehicle stolen from his home address in Belfast. At about 7.00 pm on 4 May you sold a car door from that stolen motor vehicle. You claimed you got the door off an associate and you claimed that you were unaware that it was stolen. Obviously now that you pleaded to that charge, you have accepted that you were reckless, you acted with reckless intent.
[4] Turning now to deal with the September matters. Between 28 August and 29 August this year a Toyota Hilux was stolen from a house in Rolleston by you. That Hilux truck was worth $8000. At about 2.00 am on 4
September this year you were found driving the Toyota Hilux on Anzac
Drive in Christchurch. At the time you were a disqualified driver. You were observed by police on Anzac Drive heading towards Travis Road. Police
activated their red and blue flashing lights to indicate that you were to pull
over. Rather than doing that you responded by accelerating away.
[5] You approached a roundabout at the intersection of Anzac Drive at a speed of between 100 and 130 kilometres per hour. The posted speed limit in that area was 70 kilometres per hour, reducing to 50 kilometres per hour. You hit the roundabout continuing north on Frost Road towards Mairehau Road. A second police vehicle travelling north on Mairehau Road when your vehicle was observed exiting Medina Crescent, turned into the same lane. The police vehicle had to take evasive action to avoid crashing into you. You subsequently drove off. You dumped the vehicle in Beach Road and then you decamped on foot. You were tracked by a police dog. After a protracted negotiation using a specialist police negotiator you were finally taken into custody.
[6] The police located in the stolen Toyota Hilux 15 rounds of ammunition. There were various calibres ranging from .22 to .308 rounds relating to rifles, as well as two shotgun cartridges and two metal firearm magazines. You do not hold a firearms licence and therefore you were not entitled lawfully to be in possession of those items.
[7] Located also in the vehicle were several point bags containing methamphetamine residue. In explanation you stated you had stolen the vehicle a couple of days earlier.
District Court Sentencing
[5] In the District Court, Judge Garland identified unlawfully taking a motor vehicle, driving while disqualified (third or subsequent), and unlawful possession of ammunition as the lead charges.
[6] On the unlawfully taking the motor vehicle charge, Judge Garland took notice of the fact that the vehicle had a value of $8,000 and the owner suffered considerable inconvenience and concern. He adopted a starting point of 12 months’ imprisonment. On the driving while disqualified charge, the Judge considered that it was aggravated
by the dangerous driving and the failing to stop for the police. Having regard to other relevant cases, a starting point of 12 months’ imprisonment was adopted.9 In relation to the possession of methamphetamine and ammunition charges, Judge Garland noted that Mr Shufflebotham’s history of drug-related and firearms offences made this offending “of serious concern”, as did the sheer variety of ammunition found in his possession, and his contemporaneous possession of methamphetamine.
On these charges, the Judge adopted a starting point of six months’ imprisonment. The overall starting point on the lead charges therefore was one of two years six months’ imprisonment.
[7] On the charge of receiving, Judge Garland adopted a starting point of one month’s imprisonment, taking the total starting point to two years seven months’ imprisonment.
[8] Turning to the aggravating and mitigating factors personal to Mr Shufflebotham, Judge Garland noted his extensive criminal history of 43 previous convictions. In the Judge’s view, this warranted an uplift of 12 months. A further three months was justified on the basis that Mr Shufflebotham was subject to release conditions and a sentence of community work at the time of the offending. This took the total to three years 10 months’ imprisonment.
[9] Finally, considering personal mitigating factors, Mr Shufflebotham entered early guilty pleas to all but one of the charges. For this, the sentence was reduced by
10 months taking the final sentence to one of three years’ imprisonment. This was
imposed by the following concurrent terms:
(a) unlawfully taking a motor vehicle – three years imprisonment;
(b) driving whilst disqualified, third or subsequent – 18 months’
imprisonment;
(c) unlawfully possessing ammunition – six months’ imprisonment;
9 New Zealand Police v Shufflebotham, above n 1, at [19], citing R v Butterfield CA100/97, 23
July 1997 and Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
(d) dangerous driving – two months’ imprisonment;
(e) possession of methamphetamine – one month’s imprisonment; and
(f) receiving – one month’s imprisonment.
[10] Mr Shufflebotham was also disqualified from holding or obtaining a driver licence for a period of two years commencing from 8 April 2016. And, on the charge of failing to stop Mr Shufflebotham was convicted and discharged.
Jurisdiction
[11] Mr Shufflebotham may appeal his sentence as of right.10 As first appeal Court, this Court may only disturb a sentence the subject of appeal if satisfied that there is an error in the sentence imposed on conviction, and a different sentence should be imposed.11
[12] Recent Court of Appeal authority has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 (the CPA) was not intended to significantly depart from the position under the predecessor regimes in the Crimes Act 1961 and the Summary Proceedings Act 1957.12 Although the CPA makes no express reference to “manifestly excessive” sentences, that threshold remains well- ingrained in the Court's approach to sentence appeals.13
Submissions
Submissions for the appellant
[13] Mr James, counsel for Mr Shufflebotham, submits that the end sentence imposed was manifestly excessive. He contends that the Judge erred in adopting a sentencing methodology that has resulted in a disproportionately long sentence,
contrary to s 85(3) of the Sentencing Act 2002.
10 Criminal Procedure Act 2011, s 244.
11 Section 250.
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, citing Crimes Act 1961, s 385(3); Summary Proceedings Act 1957, s 121(3).
13 At [33] and [35].
[14] More specifically, Mr James submits that no issue would ordinarily be taken with starting points of 12 months’ imprisonment for each of the charges of driving while disqualified and unlawful taking of the motor vehicle. In this case, however, as the offences were associated, the two years taken together was set too high and the totality principle necessitated a lesser starting point. Conversely, Mr James did seem to acknowledge that the aggravating factor of the police pursuit may have justified Judge Garland’s two year starting point.
[15] Mr James further submits that the 12 month uplift for previous convictions, when coupled with the three month uplift for offending while on bail and subject to release conditions, was too high. An uplift of no more than eight months, he said, should have been imposed. Mr James does accept the three month uplift however. Further, he says Mr Shufflebotham should have received the full 25 per cent discount for his guilty pleas, in addition to discounts reflecting his personal circumstances. These include his care of a teenage son and pregnant partner.
[16] Overall, Mr James maintains that the overall sentence of three years ten months’ imprisonment before discounts was manifestly excessive. Having regard to overall criminality, the sentence before discounts, he contends, should have been in the region of three years.
Submissions for the respondent
[17] Ms Basire, for the Police, submits that although the end sentence was stern, it is within range for repeat offending of this type. Specifically, Ms Basire maintains that Mr Shufflebotham’s prior convictions satisfy all three of the criteria which Dunningham J identified as justifying such an uplift in Reedy v Police.14 She emphasises the lengthy history and aggregate potency of his offending, and the clear danger his recidivism poses to the public. Further, Ms Basire contends that the uplift
for offending whilst on bail and subject to release conditions must be seen as simply
due to Mr Shufflebotham’s total disregard for Court orders, and is therefore not
logically linked to the 12 month uplift for prior convictions.15
14 Reedy v Police [2015] NZHC 1069 at [19].
15 Clunie v R [2013] NZCA 110 at [22].
[18] With regard to the guilty plea discount, Ms Basire submits that the appropriate discount is ascertained by an evaluation of all the circumstances in which the plea is entered. She notes in particular that the timing of the plea is only one factor among many, and that Mr Shufflebotham was facing a very strong prosecution case.
Discussion
Proper starting point on lead offences
[19] Mr Shufflebotham’s unlawful taking offending is quite similar to that outlined in O’Sullivan v Police, for which Mallon J reduced the three year imprisonment starting point to 12 months’ imprisonment.16 Such a starting point is equally apt for the driving while disqualified charge, which was aggravated by the dangerous driving and the failing to stop for the police. As Mr James responsibly, albeit tentatively, conceded, the combined starting point of two years was justified by these aggravating factors.17
Disproportionate uplift?
[20] For convenience, I set out Dunningham J’s précis of the applicable principles and rationale in relation to uplifts for prior convictions:18
(a) there will be no uplift for the bare existence of previous convictions
— to do so would be to punish offending more than once;
(b) The permissible lines of reasoning, justifying an uplift, fall into three broad categories:
(i) previous convictions bearing upon character and culpability; (ii) indication of predilection to offend in a specific way (an
indicator of reoffending);
(iii) the need to protect society by the imposition of a deterrent sentence.
This necessarily requires the uplift to be firmly tied to specific aspects of the offender's criminal history.
16 O’Sullivan v Police [2015] NZHC 2032.
17 At [21].
18 Reedy v Police, above n 14, at [19] (citations omitted).
(c) the uplift must remain proportionate to the starting point fixed by the sentencing Judge.
(d) there is no fixed figure beyond which an uplift will be held to be disproportionate. This is a matter to be determined, at first instance, by the sentencing judge having regard to all relevant factors (i.e. number, seriousness and nature of previous convictions, previous sentences imposed, time elapsed since the last conviction etc).
[21] In the present case, I am satisfied that Mr Shufflebotham’s prior convictions bear upon his character and culpability with regard to the present offending. In addition, in my view they indicate his predilection to offend in a specific way, and evince a need to protect the community from his recidivism by the imposition of a deterrent sentence. Further, I accept that, in the particular interests of protecting the community from Mr Shufflebotham and deterring the commission of such offending, this criminal history warrants a significant uplift.
[22] I do not accept, however, Ms Basire’s attempt to “logically” sever the two uplifts, as the primary issue is one of proportionality to the starting point, rather than any nexus with coeval uplifts. Nevertheless, in the light of appellate authority and the above criteria, I consider the 12 months imposed is proportionate to the starting
point fixed by Judge Garland.19
Guilty plea discount
[23] For the cogent policy reasons expressed by the Supreme Court in Hessell v R, the discount for a guilty plea is not to exceed 25 per cent.20 The Supreme Court also clarified that all the circumstances in which the plea was entered must be considered by the sentencing judge in giving credit for the plea, not merely the timing.21 These circumstances include the degree to which the guilty plea facilitates the administration of the criminal justice system.22
[24] By my calculation, Judge Garland’s discount of 10 months, from the adjusted starting point of 46 months, amounts to a discount of approximately 22 per cent.
19 Tiplady-Koroheke v R [2012] NZCA 477; Hodgkinson v R [2012] NZCA 478; Ripia v R [2011] NZCA 101 at [10]. See also Fry v R [2014] NZCA 174; Beckham v R [2012] NZCA 290.
20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [48] and [75].
21 At [51].
22 At [57]-[58].
Given that Mr Shufflebotham promptly pleaded guilty to all but one of the charges he faced, I am satisfied that 22 per cent was a sufficient discount here, and taking into account also the need to reflect the benefit of such to the overall interests and administration of justice. Moreover, it is so proximate to the accepted maximum of such discounts that any increase (capped at three per cent) in my judgment would simply be unwarranted tinkering.
Manifestly excessive sentence?
[25] It is, by now, trite law that whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.23 Where the sentence imposed is within the range that can properly be justified by accepted sentencing principles, this Court will not intervene.
[26] I have mentioned the factual similarities between this case and O’Sullivan, where an end sentence of 16 months was deemed appropriate on appeal.24 However, beyond proper starting points, the parallels are less notable. In both the sheer number and gravity of charges, the offending in this case far exceeded that in O’Sullivan, Over and above the charges in O’Sullivan, this case involves receipt of stolen goods, unlawful possession of ammunition, dangerous driving, and possession of
methamphetamine (rather than cannabis). These additional, serious offences are punishable by far higher penalties than those possible in O’Sullivan. Further, in that case the appellant’s mental illness was a significant personal mitigating factor. In addition, his previous relevant offending merited only a three month uplift in that case, as it was less temporally connected to the charges on which he was being sentenced. That offending was also far less extensive than Mr Shufflebotham’s.
[27] In O’Sullivan it was also accepted that the sentencing Judge’s methodology was wrong.25 This was not the case here. I do not accept that Judge Garland’s sentencing methodology has resulted in a disproportionately long sentence, so as to offend against the totality principle or to warrant quashing and replacing the
sentence.
23 Ripia v R [2011] NZCA 101 at [15].
24 O’Sullivan v Police, above n 16
25 At [18].
Conclusion
[28] Judge Garland did not err in the sentence originally imposed, nor should a different sentence have been imposed. This appeal is accordingly dismissed.
...................................................
Gendall J
Solicitors:
Raymond Donnelly & Co, Christchurch
Copy to Alister James, Barrister, Christchurch
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